Kent wrote here about Virginia Gov. Terry McAuliffe's blanket order restoring the voting rights of about 200,000 felons in that state. This afternoon, the Virginia Supreme Court nullified McAuliffe's order.
Full participation in democracy is, in the abstract, a good thing. And doing what we can to bring back into the system felons who understand the wrongfulness of their behavior and have corrected it is part of that. Restoring the vote for those who continue to believe (and, often, to act) as if law is for other people, and rules are for suckers, is a different matter. That would certainly seem to be more an abuse than a use of this aspect of executive power.
At the end of the story linked above, Gov. McAuliffe is reported to have said he would effectively defy any court order contrary to his liking: "I will sign 206,000 orders. They will have their rights back that day."
He is welcome to proceed, as far as I'm concerned. Signing 206,000 orders in a day will obviously reflect exactly the mass "consideration" the Court forbade today, and thus will earn McAuliffe a contempt citation.
UPDATE: As the first commenter points out, I failed correctly to link the WTOP story. I apologize for this error, which I have rectified. That said, the story states, as I quoted, "I will sign 206,000 orders. They will have their rights back that day." In other words, it makes crystal clear that McAuliffe intends to attempt to do by poorly disguised indirection what the Court has forbidden, to wit, grant a mass pardon.
First, erratum: you link twice to the Kent's previous post, omitting the link to the news story about the court order.
Second, Gov. McAullife doesn't say he'll sign 206,000 orders in a day. All he's saying is that he'll "expeditiously" sign the 13,000 orders needed to cover those who've already registered to vote, and will keep signing orders thereafter until everyone is covered.
See the Washington Post for example.
Thank you for pointing out the error, which I have now corrected.
Even assuming (incorrectly) that McAuliffe is saying "only" that he'll expeditiously sign 13,000 orders, that too would obviously be the mass pardon the Virginia high court has forbidden. There is no way to look at McAuliffe's stance as being something other than point-blank defiance.
Do you approve of executive defiance of court orders?
I don't see this as executive defiance of a court order -- I rather see it as executive compliance with the court order, with the rest of the dispute becoming non-justiciable.
Can (and should) a court decide how much consideration the Governor must give to each case before deciding to grant the clemency? Can a court determine the maximum fraction of requests that may be granted before this becomes "mass clemency"?
I'm fairly certain you won't object if the governor rejected practically all restoration requests without giving them any thought, or if the governor gave his subordinates rules such as "cases of those convicted of murder shall not be brought to my desk at all". If so, then I think he should also be permitted to give them the rule "every case should be brought to my signature". This rule ensures that every case is handled separately and according to established rules of decision (even if we find the rule of decision objectionable).
If a felon denied restoration of his rights sued on the theory that the governor didn't give enough consideration to his case (let alone that he deserved the clemency), the lawsuit would be thrown out on the grounds that this clemency is given to the discretion of the governor, who may execute it as he wills. The same thinking should apply if the felons are granted the restoration.
To me, the remedy ought to be political: the people can remove the governor, or reduce the powers of his office.
However much consideration must be given, it has to be more than zero, which is how much there would be if he signed 13,000 orders in a day, as you full well know. And one need not determine the exact place at which it becomes "mass clemency;" 206,000 is way, way over any conceivable line.
As I suspect you also know, McAuliffe has actually given personal consideration -- even ten seconds -- to no one. He just decided that, as a political and perhaps ideological matter, he was going do to a mass restoration. He thought he could get away with it (so did I, to be honest). Both of us were wrong.
"This rule ensures that every case is handled separately and according to established rules of decision (even if we find the rule of decision objectionable)."
What the state Constitution requires (according to the Court and established practice) is individual consideration, not "handled separately," which is nothing but an attempt at a word dance.
And the matter has been subject to political correction more than your comment discloses. Early this year, the Republican-dominated state legislature blocked one of McAuliffe's appointees to the state Supreme Court, and replaced her with one of its own choosing. The Republican replacement was the fourth and deciding vote in this case.
Finally, there is no need to reduce the powers of the governor's office. There is only the need for him to exercise them according to existing law.